Frank Brennan SJ. Cardinal Pell at the Royal Commission

Last September I addressed the Canon Law Society of Australia and New Zealand on issues the Catholic Church would need to address with the Royal Commission into Institutional Responses to Child Sexual Abuse, and in the follow-up to the Victorian Parliament’s Inquiry into the Handling of Child Abuse by Religious and other Organisations.

I said: “Those who exercised high office in our Church before 1996 will need to apprise the royal commission of the clerical structures and culture which precluded them from taking further action to arrest child abuse in the Church prior to the institution of Towards Healing and the Melbourne Response.” At the moment, the royal commission’s focus is on Cardinal Pell and the Archdiocese of Sydney through the prism of the Ellis case. Now is the time for the structures and culture to be explained, not just to Catholics, but to all citizens.

In his written submission to the Victorian Inquiry Cardinal Pell who had been auxiliary bishop in Melbourne between 1987 and 1996 stated, “As an auxiliary bishop to Archbishop Little I did not have the authority to handle these matters and had only some general impressions about the response that was being made at that time, but this was sufficient to make it clear to me that this was an issue which needed urgent attention and that we needed to do much better in our response.” Back in 1988, Pell’s predecessor as Archbishop of Melbourne, Sir Frank Little had set up “a confidential subcommittee” consisting of a lawyer, a psychiatrist and a priest. Archbishop Denis Hart, Pell’s successor as Archbishop of Melbourne, told the Victorian inquiry that in 1992, he as a priest in the Archdiocesan administration, first began to hear that priests were engaging in sexual abuse. When speaking of his installation as Archbishop of Melbourne on 16 August 1996, Cardinal Pell wrote to the parliamentary committee saying: “At this time, the media was full of accounts detailing sex abuse in the Catholic community.” Understandably, this left many people inside and outside the Church wondering, “If Archbishop Little didn’t respond adequately between 1987 and 1996, why didn’t his auxiliary Bishop Pell do something?” and “If the Archbishop knew during those nine years, why didn’t his Auxiliary?”

Meanwhile in Sydney in the Ellis litigation to which Cardinal Pell was initially a defendant as the new Archbishop of Sydney, Justice Mason, President of the New South Wales Court of Appeal, had cause to refer to the affidavit of Fr John Usher referring to the Archbishop of Sydney at the time of the alleged abuse, Cardinal Freeman “and a number of Auxiliary Bishops as ‘the persons within the Archdiocese with canonical/spiritual authority in relation to (the wrongdoer, Fr Duggan) in respect of the period’”. Justice Mason later referred to the evidence “showing that it was the former Archbishop, in consultation with the Archdiocesan Council, and not the Trustees, who appointed and supervised Fr Duggan.” These issues of authority and knowledge are in desperate need of clarification for the good of all parties and for the good of the Church. If there were different structures and practices in the major archdioceses with auxiliary bishops, for example between Melbourne and Sydney, then this needs to be clarified at the royal commission.

There is obviously also a need to admit error and rectify the way some lawyers have acted in the name of the Church in the past. The Ellis case is a real blot on the Church’s record in light of the letter sent by Monsignor John Usher, Chancellor of the Archdiocese of Sydney, to Mr John Ellis on 6 August 2009 stating that he was distressed to learn that the Archdiocesan lawyers had never responded to an offer of compromise and that the Cardinal “will do all in his power to ensure that this sort of legal abuse is never repeated again”. Presumably we will hear from Corrs, the Melbourne lawyers brought in specially by Cardinal Pell to run this piece of protracted litigation. Major firms briefing senior counsel in the appeal courts incurring six-figure expenses are careful to act on instructions from their clients.

Appearing before the royal commission, church members and the Truth Justice and Healing Council will need to enunciate a principled position on the maintenance of legal professional privilege. Given the undoubted instances of legal obfuscation in the past, I would suggest that there be a general waiver of privilege in the interests of transparency but with an exception being made for documents between lawyer and client in relation to matters still pending in the courts. The questions of legal privilege are complex in this royal commission because the law of privilege varies between States and between States and the Commonwealth, bearing in mind that this is in effect seven royal commissions all rolled into one.

In November the Victorian parliamentary committee reported. Welcoming the report, Cardinal Pell admitted past mistakes by the Melbourne Archdiocese during his time as auxiliary bishop there. He wrote: “The report details some of the serious failures in the way the church dealt with these crimes and responded to victims, especially before the procedural reforms of the mid 1990s. Irreparable damage has been caused. By the standards of common decency and by today’s standards, church authorities were not only slow to deal with the abuse, but sometimes did not deal with it in any appropriate way at all. This is indefensible.”

This refreshing change of tone and collective acceptance of responsibility makes it possible to get some clearer air in the public domain about noble, principled and professional efforts post-1996 as well as unfortunate continued shortcomings. Many of those efforts included highly cooperative, though flawed, initiatives involving both Church and police.

If the Church maintains the approach that only deceased individual bishops and superiors were to blame prior to 1996, it will be doing a disservice not only to the victims but also to other members of the Church community hoping and praying that the Church might be the exemplar of faith, hope and love — faith in a just and forgiving God, hope for all, including those whose lives have been wrecked by criminal abuse, and love for all, including the primary and secondary victims, erring clerics, our enemies and biased critics.

This week in preparation for his appearance before the royal commission, Cardinal Pell made a second and more specific admission of the need for a change of approach. He wrote: “Whatever position was taken by the lawyers during the litigation, or by lawyers or individuals within the Archdiocese following the litigation, my own view is that the Church in Australia should be able to be sued in cases of this kind.”

As I said on ABC World Today: “It’s heartening to see that at the top leadership of the Catholic Church in Australia, in relation to a case where Cardinal Pell himself was involved as the Archbishop of Sydney while this litigation was playing itself out, it would seem that in hindsight he’s saying, ‘We’ve got to be able to do better than that.’ And I think that’s good news for everyone.” No doubt, it will be excruciating for the members of the Sydney Archdiocesan administration (clerical and lay) when each of them appears in the witness box in coming days. But let’s hope the spotlight on the Ellis case provides clarity and new learnings for better administration for the good of all Christ’s faithful, especially those who have been abused or wronged by those in authority. We all need to know which diocesan personnel appoint and supervise church workers, including priests, and which diocesan personnel actually run the show, issuing instructions to lawyers who in the past have pursued individuals like Mr Ellis. We need to learn from our mistakes putting in place better structures and a better culture for ensuring that those who appoint, supervise and instruct act in the best interests of the little ones, the anawim to whom Jesus gave a privileged place at table.

One Response to Frank Brennan SJ. Cardinal Pell at the Royal Commission

Frank Brennan expressed the view that there should be a general waiver of privilege in the interests of transparency in relation to the instructions given to Corrs to pursue the Ellis matter to the extent that they did.
Cardinal Pell’s statement to the Royal Commission has not yet become an exhibit, so we do not know what is in it. However, the evidence that has been adduced so far would seem to indicate that Cardinal Pell might have waived any privilege that might have attached to any communications that he had with Corrs over the Ellis litigation.
John Ellis says that after the litigation was over and there were negotiations about how Ellis was going to pay the costs awarded against him, Cardinal Pell told him that he had no idea about the offer of $750,000 offer made at the start of the litigation, and he also had no idea that he had spent more than that on lawyers to fight the case on a legal point. Further, that Cardinal Pell had called this “legal abuse”.
That term, as Frank Brennan points out, also appears in the letter of apology to Ellis on 6 August 2009. It is something that brings out into the open the relationship between Cardinal Pell and the Trustees of the Roman Catholic Church and their lawyers. If the suggestion is that the lawyers were acting without the instructions of their clients, that amounts to negligence at best or professional misconduct at worst. The effect of such an allegation is that any claim by Cardinal Pell to be protected by solicitor/client privileged would normally be waived, and the protection given by S.6AA of the Royal Commissions Act would not apply. The file setting out the instructions and their source then becomes available for scrutiny.
Of course, it may well be that the lawyers did inform the Cardinal’s office (to use a neutral term) and received their instructions back, and everything they did was in accordance with those instructions. The ‘legal abuse’ then had nothing to do with the lawyers, but everything to do with the Church. That then raises the issue of who gave the instructions to Corrs to put in question Ellis’s complaint of sexual abuse when the Church assessment was that, on the balance of probabilities, it was true.
The drama of this live telecast arises from the slow process of elimination of the Cathedral underlings. John Davoren has already said that Pell was the one who made the financial decisions over claims. Michael Salmon said the Pell would be advised of the complaints, but the primary running of the matter would be through his chancellor. He also said that since Mr. Ellis was making a claim for $100,000, which was more than the $50,000 that was the normal ceiling that the Archdiocese would contemplate, this would have come to Pell’s attention. Then, on Thursday, Monsignor Rayner, the Chancellor from April 2003 to May 2005, said that he didn’t have much to do with Corr’s, the solicitors acting for Pell and the Trustees in Ellis’s action against them. The most involvement he had would have been a phone call or two.
There are still some witnesses to go before we finally get to hear from Cardinal Pell, notably Dr. Michael Casey, Pell’s private secretary and Mr. Danny Casey, the Archdiocese business manager. As Frank Brennan points out, it would be highly unlikely for a reputable firm of lawyers to be clocking up $750,000 of legal costs without specific instructions from the clients, who in this case were Cardinal Pell personally and the Trustees of the Archdiocese.
This Royal Commission has become a veritable “who dunnit” – who gave the instructions to Corrs to pursue John Ellis with what can only be properly described as “legal abuse”. It’s the best drama in town, and it is unfolding slowly as the Commission works its way up towards the Archbishop.

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